Taking the NAD Express Lane: NAD Issues its First Substantive Fast-Track SWIFT Decision

By Sara Skinner Chubb

Following the launch of its Fast-Track SWIFT program in April of this year, the National Advertising Division (NAD) recently issued its first substantive opinion under the accelerated process for the review of advertising challenges. In a challenge brought by Kind LLC, maker of Kind Bars, the NAD determined that a claim by Clif Bar & Co. that its Clif Energy Bars are “a better performing bar … for sustained energy” was unsubstantiated in the context of a Google Ad result for internet searches for “Kind Bars” or “energy bars.” The Fast-Track SWIFT program allows parties to receive a decision within 20 business days from initiation of a challenge and is reserved for challenges limited to a single, well-defined issue such as an express claim that does not require review of complex legal arguments or evidence.

In the case, Clif argued that the challenge was not appropriate for the accelerated process because the question of whether “better” conveyed a comparative performance claim or was mere puffery may require expert testimony and a consumer perception survey that the accelerated timeline would not allow. The NAD disagreed with Clif’s assertions, determining that evaluation of the claim was straightforward and would not require review of complex evidence. In arriving at its decision, the NAD concluded that the claim as a whole tied “better” to the objectively measurable performance attribute “sustained energy.” The evidence presented by Clif, including nutritional information about both Clif and Kind Energy Bars and a dietician’s report, failed to support the claim as it appeared in the Google search results. In keeping with the narrow scope of review under the Fast-Track SWIFT program, the NAD made clear that its recommendation to discontinue the claim was limited to the context of a Google Ads result.

While Fast-Track SWIFT challenges must be limited to a single issue, they need not be quite as narrow as the Clif Energy Bar challenge. The NAD recently determined that an express claim appearing in TV, radio and internet advertising and the sufficiency of its related disclosures about the availability of 5G services was appropriate for the Fast-Track SWIFT program even though the presentation of the claim differed somewhat across the various advertising channels. No substantive decision was issued in that challenge because the advertiser declined to participate in the review process.

Currently, the NAD is only accepting three types of claims for the accelerated program:

1. The prominence or sufficiency of disclosures, including disclosure issues in influencer marketing, native advertising, and incentivized reviews

2. Misleading pricing and sales claims

3. Misleading express claims that do not require review of complex evidence or substantiation such clinical or technical testing or consumer perception evidence

More information about the Fast-Track SWIFT program is available on the NAD’s website.